Syncap Management (Rural) Australia Ltd v Lyford [2004] FCA 1352

Syncap Management (Rural) Australia Ltd v Lyford [2004] FCA 1352

The application failed because, on the change of responsible entity from FPA to the plaintiff, s 601FS(1) operated so that FPA's obligations and liabilities in relation to the scheme under the FPA charge, including submission to the second defendant's right to appoint a receiver, became obligations and liabilities of the plaintiff. The FPA charge was entered into for the benefit of the farmers in the scheme and in good faith, so FPA had a right of indemnity and the exception in s 601FS(2)(d), and s 601FT(2), did not apply. The constitutional issue did not really and substantially arise because the matter was resolved by s 601FS. The second appointment over the project lease was also valid...

Jurisdiction
Australia
Judgment Date
20 October 2004
Procedural Posture
Application Under S 418 a of the Corporations Act 2001 (cth) for a Declaration That Appointments of a Receiver and Manager Were Invalid / Final Judgment on the Application
Outcome
Application dismissed.
Legal Topics
['change of Responsible Entity of Registered Managed Investment Scheme' 'validity of Appointment of Receiver and Manager' 'effect of Ss 601 FS and 601 FT of the Corporations Act 2001 (cth)' 'responsible Entity Indemnity and S 601 Fs(2)(d)' 'fixed and Floating Charge Over Scheme Property' 'section 78 B Judiciary Act Notice']
['corporations Law' 'managed Investment Schemes' 'receivership' 'securities and Charges' 'constitutional Law'] ['change of Responsible Entity of Registered Managed Investment Scheme' 'validity of Appointment of Receiver and Manager' 'effect of Ss 601 FS and 601 FT of the Corporations Act 2001 (cth)' 'responsible Entity Indemnity and S 601 Fs(2)(d)' 'fixed and Floating Charge Over Scheme Property' 'section 78 B Judiciary Act Notice']

Case Brief

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Procedural Posture

Application Under S 418 a of the Corporations Act 2001 (cth) for a Declaration That Appointments of a Receiver and Manager Were Invalid / Final Judgment on the Application

Legal Issues

  1. 1 ["Whether the second defendant's rights under the FPA charge, including the right to appoint a receiver, became rights, obligations or liabilities of the plaintiff when the plaintiff replaced FPA as responsible entity of the scheme under s 601FS of the Corporations Act 2001 (Cth)." 'Whether the exception in s 601FS(2)(d), and by operation of s 601FT(2), prevented the FPA charge from applying because FPA could not have been indemnified out of scheme property.' 'Whether reliance on s 601FT raised a real constitutional issue under s 51(xxxi) of the Australian Constitution requiring notice under s 78B of the Judiciary Act 1903 (Cth).' 'Whether the second appointment of the first defendant as receiver and manager of the project lease was valid.' 'Whether the FPA charge or first notice of appointment was ambiguous or uncertain as to the property charged.']

Ratio Decidendi

The application failed because, on the change of responsible entity from FPA to the plaintiff, s 601FS(1) operated so that FPA's obligations and liabilities in relation to the scheme under the FPA charge, including submission to the second defendant's right to appoint a receiver, became obligations and liabilities of the plaintiff. The FPA charge was entered into for the benefit of the farmers in the scheme and in good faith, so FPA had a right of indemnity and the exception in s 601FS(2)(d), and s 601FT(2), did not apply. The constitutional issue did not really and substantially arise because the matter was resolved by s 601FS. The second appointment over the project lease was also valid...

Court Disposition

Application dismissed.

Orders

  • ['The application is dismissed.' "The plaintiff pay the defendants' costs of the application."]